Veitch Penny Solicitors

In a case which underlined the special regard that planners must have to the setting of heritage buildings, a local authority has succeeded in its High Court challenge to plans for an 86-metre high wind turbine, which it claimed would spoil the surroundings of prized local monuments.

In overturning a Government planning inspector’s decision to approve the plans, the Court found that he had adopted a wrong approach when weighing up the energy benefits of the turbine against the impact on the surroundings. The inspector had failed to give the necessary weight to the effect of the development on two listed churches, a castle and a stately home in the locality.

The local authority had refused planning consent on the basis of a planning officer’s opinion that the turbine would result in ‘significant change to the character and scale of the landscape’ and would impact on views. The officer found that the turbine would produce a relatively small amount of electricity and that any benefits were outweighed by the potential harm.

However, in allowing the developer’s appeal, the inspector had taken the view that the turbine’s effect on heritage assets would be 'less than substantial'. There was a strong public interest in the creation of alternative energy sources and there were few sites in the area suitable for that purpose.

Upholding the local authority’s challenge to that decision, the Court found that the inspector had failed to have ‘special regard’ to preserving the setting of heritage assets, as required by the Planning (Listed Buildings and Conservation Areas) Act 1990. The Court noted that, ‘as a matter of impression’, the inspector’s reasoning did not indicate that he had taken that approach.

The judge concluded, “The inspector’s approach seems to me at this level to have balanced the relative harm and benefit as a matter of straightforward planning judgment without that special regard required under the statute. The inspector did not in fact have regard to the statutory duty but applied a simple balancing exercise.

“In the particular circumstances of this decision it is not possible to know how the balance would or might have been affected if he had had special regard to the desirability of the preservation of the settings. I accept on the conclusions which he set out he could still have come to the same overall decision, but I do not consider that it is possible for this Court to say that he would inevitably have done so if he had in fact taken the statutory requirement into account.”

The Secretary of State for Communities and Local Government was directed to consider the matter afresh and to pay the legal costs of the case.